Truong v. Colvin

          MEMORANDUM OPINION AND ORDER

         I. PROCEEDINGS

         Plaintiff filed this action on October 16, 2015, seeking review of the Commissioner's denial of her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on November 6, 2015, and November 19, 2015. Pursuant to the Court's Order, the parties filed a Joint Stipulation on June 7, 2016, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.

         BACKGROUND

         Plaintiff was born on May 3, 1970. [Administrative Record ("AR") at 19, 169, 173.] She has past relevant work experience as a home attendant and teacher aide II. [AR at 19, 44.]

         On April 25, 2012, plaintiff protectively filed an application for a period of disability and DIB, and on April 27, 2012, she protectively filed an application for SSI payments, alleging in both that she has been unable to work since August 1, 2010. [AR at 10, 169-72, 173-81.] After her applications were denied initially and upon reconsideration, plaintiff timely filed a request for a hearing before an Administrative Law Judge ("ALJ"). [AR at 10, 118-20.] A hearing was held on February 18, 2014, at which time plaintiff appeared represented by an attorney, and testified on her own behalf. [AR at 26-47.] A vocational expert ("VE") also testified. [AR at 43-46.] On April 22, 2014, the ALJ issued a decision concluding that plaintiff was not under a disability from August 1, 2010, the alleged onset date, through April 22, 2014, the date of the decision. [AR at 10-21.] Plaintiff requested review of the ALJ's decision by the Appeals Council. [AR at 5-6.] When the Appeals Council denied plaintiff's request for review on September 18, 2015 [AR at 1-3], the ALJ's decision became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action followed.

         III. STANDARD OF REVIEW

         Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).

         "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) (citation and internal quotation marks omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (same). When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citation omitted); see Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.") (citation and internal quotation marks omitted). "Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld." Ryan, 528 F.3d at 1198 (citation and internal quotation marks omitted); see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) ("If the evidence can support either affirming or reversing the ALJ's conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.") (citation omitted).

         IV. THE EVALUATION OF DISABILITY

         Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

         A. THE FIVE-STEP EVALUATION PROCESS

         The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairment significantly limiting her ability to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. Id. The Commissioner then bears the burden of establishing that the claimant is not disabled, because she can perform other substantial gainful work available in the national economy. Id. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

         B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since August 1, 2010, the alleged onset date.^[1] [AR at 12.] At step two, the ALJ concluded that plaintiff has the severe impairment of status post fusion and discectomy of the cervical spine at C5 to C6. [Id.] He found plaintiff's alleged impairments of ovarian tumor and depression to be non-severe. [AR at 12-13.] At step three, the ALJ determined that plaintiff does not have an impairment or a combination of impairments that meets or medically equals any of the impairments in the Listing. [AR at 14.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC")^[2] to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), ^[3] except "she is able to occasionally balance, stoop, kneel, crouch, crawl, and climb. In addition, she is able to perform occasional overhead reaching with the bilateral upper extremities." [AR at 15.] At step four, based on plaintiff's RFC and the testimony of the VE, the ALJ concluded that plaintiff is unable to perform any of her past relevant work as a home attendant and teacher aide. [AR at 19, 44-45.] At step five, based on plaintiff's RFC, vocational factors, and the VE's testimony, the ALJ found that there are jobs existing in significant numbers in the national economy that plaintiff can perform, including work as an "inspector" (Dictionary of Occupational Titles ("DOT") No. 529.687-114), "packager" (DOT No. 559.687-074), and "office helper" (DOT No. 239.567-010). [AR at 20, 45.] Accordingly, the ALJ determined that plaintiff was not disabled at any time from the alleged onset date of August 1, 2010, through April 22, 2014, the date of the decision. [AR at 20-21.]

         V. THE ALJ'S DECISION

         Plaintiff contends that the ALJ erred when he: (1) failed to properly develop the record; and (2) considered plaintiff's subjective symptom testimony. [Joint Stipulation ("JS") at 3.] As set forth below, the Court agrees with plaintiff, in part, and remands for further proceedings.

         A. FAILURE TO DEVELOP THE RECORD

         Plaintiff argues that the ALJ did not fully and fairly develop the record because he "failed to obtain an appropriate consultative examination to determine the severity of plaintiff's physical impairments and to determine what limitations plaintiff would have from her physical impairments." [JS at 3.] Specifically, plaintiff notes that the ALJ relied on the "only opinion evidence in the file, " which was from the State Agency review physicians, who "were only reviewing physicians, " as there were no opinions or statements in the record from plaintiff's treating physicians about her functional limitations. [Id. (citing AR at 19).] Plaintiff argues, therefore, that because there were "minimal medical records in the file, " a consultative examination "would have provided more evidence regarding [her] physical impairments and limitations from someone who actually examined" her. [Id. (citing AR at 19).] She contends that the ALJ has a duty to fully and fairly develop the record, and that had he sent plaintiff for a consultative examination, "he may have come to a different conclusion regarding Plaintiff's physical impairments and restrictions on Plaintiff's ability to perform work-related activities." [JS at 3-4.]

         Defendant responds that this issue has been waived because at no time during the administrative process did plaintiff raise the issue that the record was in any way deficient. [JS at 5.] Even if not waived, defendant contends that notwithstanding plaintiff's speculations about what might have happened had the ALJ sent plaintiff for a consultative examination, substantial evidence, including nine exhibits of medical records, supported the ALJ's findings. [JS at 4-5 (citing AR at 256-525).] Defendant further argues that a consultative examination is normally required where additional evidence needed for a determination is not contained in the medical source records, or where there is an ambiguity or insufficiency in the evidence that must be resolved. [JS at 6 (quoting Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001)).] Finally, defendant submits that plaintiff bears the burden to establish the severity of her symptoms, and she did not meet her burden. [Id.]

         As a general matter, it is plaintiff's duty to prove she is disabled. Mayes, 276 F.3d at 459; 42 U.S.C. § 423(d)(5)(A) (claimant must furnish medical and other evidence of her disability); 20 C.F.R. § 404.1512(c) ("You must provide medical evidence showing that you have impairment(s) and how severe it is during the time you say you are disabled"). While plaintiff bears the burden of proving disability, the ALJ in a social security case has an independent, "‘special duty to fully and fairly develop the record and to assure that the claimant's interests are considered.'" Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citation omitted). T h i s d u t y is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. Mayes, 276 F.3d at 459-60. This principle does not allow a plaintiff to shift her own burden of proving disability to the ALJ. Id. at 459. One of the tools available to an ALJ in developing a record is the consultative examination. See 20 C.F.R. §§ 404.1512(e), 404.1517 ("If your medical sources cannot or will not give us sufficient medical evidence about your impairment for us to determine whether you are disabled . . ., we may ask you to have one or more physical or mental examinations or tests."). The Commissioner has broad latitude in ordering such an examination when there is ...